January 13, 2014

"Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem...

"... not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their 'political fights,' Breyer said, but noted that he could not find anything in the history of the clause that would 'allow the president to overcome Senate resistance' to nominees."

From the SCOTUSblog write-up of today's oral argument in in National Labor Relations Board v. Noel Canning, about the President's power to make appointments without Senate confirmation.
... U.S. Solicitor General Donald B. Verrilli, Jr. The Solicitor General made little headway in arguing that the [Recess Appointments Clause] meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most....

Washington lawyer Miguel A. Estrada, speaking for the Senate’s current Republican members, made a vigorous defense of leaving the Senate to decide its own procedures, including when it takes a recess....

32 comments:

RecChief said...

so the Constitution should be a secondary consideration?

That sounds about right for this crop of pikers

Bruce Hayden said...

I love the fact that Estrada was arguing against recess appointments, after Dems in the Senate prevented him from being confirmed to the DC Circuit, for purely political reasons - that he would be a conservative Hispanic with credentials for the Supreme Court. Notably, President Bush did not recess appoint him to that position, despite a long term relationship between the two.

El Pollo Raylan said...

I'm glad liberals are startled. It's a start.

gerry said...

made a vigorous defense of leaving the Senate to decide its own procedures, including when it takes a recess....

The ReichsObama was not pleased.

Skeptical Voter said...

I believe that Obama's "mouthpiece" argued that the President should have the power to make appointments on his own when Congress was "intransigent".

Well I have to say that where this President is concerned, I'd be proud to be an intransigent SOB. Even if he tells me "I won".

Bruce Hayden said...

It appears from the comments that even most of the liberal members of the Court seemed to side with the Senate, and against the Administration, with the possible exception of Justice Breyer. I think that it would be a notable rebuke if a majority confirming the striking down of the recess appointments included the two Justices nominated by President Obama.

Joe said...

Let's just hope that the supreme court reaffirms the plain reading of the constitution, namely that the vacancy must have occurred during a recess and that the appointment is made in that same recess.

I think it's time to amend the constitution and get rid of the damn provision since it no longer makes any sense and is open to abuse (by all sides.)

rhhardin said...

Do away with the NLRB entirely as unconstitutional interference with freedom to contract.

Two parties cannot combine to assert rights against a third that they do not have individually.

Mark O said...

To me, the more interesting and disturbing fact is that a sitting president is seriously making this argument.

Obama's guiding philosophy of government is "who's going to stop me?"

This time, someone can.

AJ Lynch said...

Obama is just winging it like he has done all his life. He never puts much work or effort into anything except his campaigns.

Michael K said...

Estrada should be on the court but he is a good advocate.

cubanbob said...

I would be shocked if the court didn't rule 9-0 against the Administration. Can anyone argue with a straight face that the congress doesn't know when it's formally in recess? Even the liberals on the court couldn't buy this nonsense and besides they know that sooner or later a Republican president will be elected and the Democrats will want to prevent a similar recess appointment by a Republican president.

madAsHell said...

It looks like this might become another unforced Obama error.

I think at the end of eight years, we will reflect, and ask "What did he do that didn't turn to shit?".

AustinRoth said...

Comment of the day on this (from InstaPundit comments):

"Roberts will uphold Obama's appointment powers as a tax"

viator said...

You mean the U.S. Senate gets to decide when the U.S. Senate is in recess?

What a revolutionary notion.

And didn't this whole imbroglio start with Obama overreach of appointment power?

viator said...
This comment has been removed by the author.
Quayle said...

And when both the executive branch and the legislative branch collude to carve up the rest of the country, then the states must stand up and take charge again.

And we're precisely at that point. The plundering thieves that used to be satisfied to camp out on wall street no longer consider accumulated capital to be a large enough opportunity pool to make it worth their time.

They've moved on to tax coffers to plunder. That's where the real money is.

Chuck said...

Here's an oft-repeated observation; I think it is as true as ever...

If it is possible to "predict" how Scalia, Thomas and Alito will vote, it is generally based on principle. Originalism, textualism; call it what you wish.

And if it is possible to predict how Ginsberg, Kagan and Sotomayor will vote, it is generally based on "will this help or hurt Democrats, right now?"

Can anyone imagine Ginsburg or Sotomayor approving of expanded Presidential powers, if she/they thought it would be empowering to a President Bush or a President Romney?

Mid-Life Lawyer said...

AJ Lynch said...

"Obama is just winging it like he has done all his life. He never puts much work or effort into anything except his campaigns."

Exactly. He seems to have rarely been called on anything or been held accountable. Here is a guy who was president of the Harvard Law Review but never published an academic article. He was a lecturer at the University of Chicago Law School for 12 years, I believe, but never published anything academic. Of course, there are were a lot of legal lightweights in the same position there, like Judges Easterbrook and Posner who just coasted along as well. (Can you imagine how those guys really feel about having to treat Obama seriously)

Obama thinks that the rules don't apply to him and he has good reason to believe that way.

Larry J said...

Who needs something as obsolete as the Constitution and Rule of Law when someone as awesome as Obama is president?!

One nation. One people. One leader! Heil Obama!

SteveR said...

This all makes sense but I have little confidence that my interpretation of these post oral argument analyses mean what I think they do. Simply put that many times I am given a strong impression that side A will win and it turns out side B wins. Obama is probably high fiveing Valerie Jarrett.

Kirk Parker said...


Chuck @ 3:39pm,

Really? Then explain Raich.

Fen said...

Its pretty simple: who determines when the Senate is in recess? The Senate or the President?

Cliff said...

What will happen to all of the "recess" appointments of other presidents if the court rules against the administration? Many currently serving justices and department positions were appointed by previous presidents under similar circumstances. I believe even Justice Scalia's son, Eugene, was one such appointment.

Ignorance is Bliss said...

Recess appointments are temporary, lasting only until the end of the next Senate term, thus at most two years.

Cliff said...

Oh that makes a lot more sense then. Thank you.

Terry said...

When Bush was running in 2000, some republicans tried to make a big deal about Bush having been a businessman. Problem was, he didn't seem to have been a very good businessman. You didn't hear about 'Bush the businessman' much after he got into office.
Yet, even after he's had his policies delivered blow after blow by the courts for their unconstitutionality, I think many liberals still believe that Obama was a respected constitutional scholar.

Beldar said...

Oh, how rich, how appropriate, that Miguel Estrada was arguing this case.

Chuck said...

Kirk;

Oh, that old Raich case. Since the intersection of "potheads" and Scalia-haters is such a large one, we always have to talk about Raich. (Even though Scalia wasn't necessary to the outcome, and didn't write the opnion for the Court majority, nor even a particularly influential concurrence; right?)

Scalia:

"The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce 'extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.' Darby, 312 U.S., at 113. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S.C. § 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.

"By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish 'controlled substances manufactured and distributed intrastate' from 'controlled substances manufactured and distributed interstate,' but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State..."

You probably won't be satisfied, Kirk. Sorry.

Kirk Parker said...

ORLY?

Since I'm neither a pothead nor a Scalia-hater, I have no idea what your opening sentence was about.

As far as quoting Scalia, it does nothing to address what I said. I generally like much of what Scalia has done, but nobody is perfect and Raich is just about the least principled thing he's ever done.

JHapp said...

You can watch Obama try to derogate Estrada at When Obama needed public-access TV to reach voters. For those of you with week stomachs just watch from minute 5 to minute 9.

B said...

"if it was a contest between historical practice and the words of the Constitution, practice should count the most"

Absolutely disgusting.